Canada Transportation Agency Proposes New Regulations that Threatens to Reduce the Duty to Accommodate Passengers with Disabilities in Air Travel and Other Transportation that the Federal Government Can Regulate, According to a New Brief by the AODA Alliance

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities http://www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance

April 18, 2019

SUMMARY

Today, the AODA Alliance submitted a brief to the Canada Transportation Agency on the draft regulations that it is proposing to enact under the Canada Transportation Act to address the many barriers that people with disabilities face in the parts of Canada’s transportation network that the Federal Government can regulate, such as air travel. We set out our brief below.

The CTA posted these very detailed draft regulations on March 9, 2019 and gave the public 30 days to comment on them. We regret that we are submitting our brief after the CTA’s deadline for comment. We were not able to prepare this brief sooner, as we have been devoting so much time to our campaign to get Canada’s Senate to strengthen the weak Bill C-81, the proposed Accessible Canada Act.

We regret that we did not have time to post a draft of this brief earlier, for your feedback, as we ordinarily do when we are preparing briefs like this. We had to prepare this brief in an extraordinary rush.

Our brief provides an excellent illustration of why we need the Senate to strengthen Bill C-81. Parts of this draft regulation that we had time to analyze threaten to weaken the protection of the duty to accommodate people with disabilities. This is because s. 172 of the Canada Transportation Act says that once a regulation like this is enacted, it serves as a cap on the duty to accommodate people with disabilities, in so far as the CTA can enforce it. Our brief illustrates by example how this draft regulation would reduce protection for the duty to accommodate people with disabilities in federally-regulated transportation.

We therefore oppose the passage of this draft regulation, for the reasons we set out in this brief. We regret having to do so, because on our first review of the draft regulation, there appear to be some good things in it. As our brief explains, we nevertheless oppose its enactment because it threatens to reduce the rights of people with disabilities.

Sadly, our brief provides a good illustration of some of the problems with Bill C-81. We have called on the Senate to amend Bill C-81 to remove the damaging and harmful s. 172, so that regulations like these cannot serve to weaken the rights of people with disabilities. Our brief illustrates why that amendment to Bill C-81 is so vital to people with disabilities. We will find out on May 2, 2019 whether the Senate’s Standing Committee on Social Affairs will take up our recommendations for strengthening Bill C-81, including the repeal of s. 172.

It is not too late for you to help. Please email the Senate’s Standing Committee by writing soci@sen.parl.gc.ca and urge the Senators to strengthen Bill C-81. Send them this brief to give a good example of why we need them to get rid of the harmful s. 172.

You should read the specific amendments we asked the Senate to make to Bill C-81, and the short brief we submitted in support of those amendments. You can also visit the AODA Alliance website, Canada page to see in one place all our efforts over the past four years to campaign for the enactment of a strong and effective national accessibility law.

MORE DETAILS

Accessibility for Ontarians with Disabilities Act Alliance
United for a Barrier-Free Society for All People with Disabilities www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance

Brief to the Canada Transportation Agency on the Draft Regulations Posted for Comment on the Canada Gazette Entitled “Accessible Transportation for Persons with Disabilities Regulations”

In this brief, the AODA Alliance offers the Canada Transportation Agency our summary feedback on the draft regulations which the CTA posted in the Canada Gazette for public comment within 30 days on March 9, 2019, entitled “Accessible Transportation for Persons with Disabilities Regulations”. (ATPDR)

The AODA Alliance regrets that it has had to submit this brief past the CTA’s deadline for feedback. We regret that our volunteer coalition did not have the capacity to address this earlier. The CTA’s short 30-day public consultation period on these complex regulations overlapped with the pivotally important hearings on Bill C-81 (the proposed Accessible Canada Act) by the Senate. Moreover, a proper analysis of the CTA’s highly-technical document, which runs over 100 pages, is not something a voluntary grassroots organization can readily undertake on such short notice. This is made more challenging by the draft regulations’ complexity and, at times, impenetrable text.

Due to the insufficient time, we have not been able to fully review and analyze the entirety of the draft regulations’ details. We here address a short number of key points that amply support our core conclusion.

Our position in this brief is summarized as follows:

1. We commend the CTA for embarking on developing modernized accessibility standard regulations. These are long overdue. We share the CTA’s conclusion that the current situation facing passengers with disabilities is unacceptable, and that mandatory enforceable regulations are needed.
2. We accept that there are some helpful provisions in the draft regulations. However despite this, the draft regulation should not be enacted in its current form, especially if Parliament does not remove s. 172 from the Canada Transportation Act. This is because as written, the draft regulation threatens to reduce human rights of passengers with disabilities.

The Canada Transportation Agency should not infer that the short list of key concerns addressed in this brief are the only concerns that we would have raised about these draft regulations, had we had a fuller opportunity to digest and analyze them.

The AODA Alliance is a non-partisan community coalition that has advocated in Ontario since 2005 for the effective implementation and enforcement of Canada’s first comprehensive provincial accessibility law, the Accessibility for Ontarians with Disabilities Act 2005. We are the successor to the community coalition that successfully campaigned from 1994 to 2005 for the AODA’s enactment. We have advised many, including several provinces, a United Nations conference, the European Union, Israel and New Zealand.

Among many other activities, we have been extensively involved in providing input to the Transportation Accessibility Standard enacted under the Accessibility for Ontarians with Disabilities Act. Our activity at the provincial level in the transportation area can be seen by visiting https://www.aodaalliance.org/transportation/

3. Endorsing Certain Specific CTA Findings

The CTA’s posting of draft regulation makes a number of key findings which the AODA Alliance endorses and supports.

The CTA correctly recognizes that Canada is not a leader in this area on the international stage. It acknowledged:

“Canada lags behind other countries that have comprehensive and enforceable regulations in this area.”

Later it wisely recognized:

“The CTA’s RMI revealed that its existing accessibility instruments represent a patchwork of regulations and voluntary standards, some of which are outdated and inadequate in their scope. This has resulted in inconsistent accessibility-related services and reduced access to transportation services for persons with disabilities.”

Still later the CTA recognized:

“Canada’s heavy reliance on voluntary codes of practice currently leaves it lagging behind other key jurisdictions that have comprehensive and enforceable accessible transportation regulations, notably the United States and the EU.”

Later the CTA similarly recognized how out-of-date its regulatory regime in this area has been:

“The current CTA regulations, voluntary codes of practice, and some of the guidance material relevant to accessible travel are outdated and contain significant gaps. While some gaps have been partially addressed through the CTA’s adjudication of individual accessibility complaints, this approach has resulted in an uneven playing field for industry, as some transportation service providers named in complaints are required to remove undue obstacles while others are not. As a result, extensive consultations have confirmed wide support from disability rights organizations, the general public and industry for the development of a single, comprehensive set of accessible transportation regulations that apply across the national transportation system.”

Elsewhere the CTA fairly acknowledged that its regulatory regime in this area to date has been inadequate, where it states:

“However, current accessibility provisions for the national transportation system are generally voluntary (i.e. not legally binding), and have not kept pace with developments since the early 2000s.”

4. CTA’s Goal In the Draft Regulation is Confused

At points, the CTA sets its goal well below the human rights standard. This is especially troubling, since the CTA states that it is trying to align itself with Bill C-81, the proposed Accessible Canada Act. That proposed legislation is called “an Act to ensure a barrier-free Canada.”

At other points, CTA merely says it aims to make transportation “more accessible”, a tepid and inadequate goal. The CTA states:

“The proposed Regulations would require these entities (collectively referred to herein as “transportation service providers”) to take steps to meet certain standards to make travel more accessible and consistent for persons with disabilities.”

Later the CTA acknowledges a stronger and far more appropriate goal of a barrier-free transportation system:

“The overarching objective of the proposed regulatory package is to promote the inclusion and participation of persons with disabilities in society by creating comprehensive and enforceable accessible transportation requirements that are applicable to all modes of transportation, and enabling persons with disabilities to travel with a predictable and consistent level of accessibility across a barrier-free modern national transportation system.”

Still later, but within just a few pages of those earlier contradictory statements, the CTA in one paragraph both sets a correct goal of “equal access” and shortly thereafter the incorrect diluted goal of “more accessible”:

“The ATPDR would ensure that all Canadians, including persons with disabilities, have equal access to the national transportation system. Transportation service providers subject to the proposed Regulations would be required to take steps and meet the proposed standards to make travel more accessible and consistent for persons with disabilities.”

We recommend that the CTA use consistent language that makes it clear that aim of the regulation is the achievement of a barrier-free and fully-accessible transportation system. We also recommend that a provision be added to the regulation that makes it clear that nothing in this regulation should be construed as reducing any duties to accommodate passengers with disabilities as guaranteed either in the Canada Human Rights Act or the Canada Transportation Act.

5. Draft Regulations Threaten to Create a New Legal Barrier that Can Impede Human Rights Duty of Transportation Providers to Accommodate

The AODA Alliance opposes the adoption of any CTA regulations that could threaten in any way to reduce the duty of transportation providers to accommodate passengers with disabilities as guaranteed under human rights laws. This includes any threat to reduce the duty of transportation providers under the Canada Transportation Act to remove and prevent undue obstacles or barriers to travel by passengers with disabilities.

For this reason, we regret that we must oppose the adoption of the draft regulation. While it includes some helpful contents, it also includes provisions that threaten existing human rights entitlements.

We have not had the time to screen the entire draft regulation to find all the threatening provisions, in order to see which parts, if any, of the draft regulation is irrelevant to that pressing concern. Before proceeding with this regulation, the Federal Government should put this draft regulation through a careful screening, with input from the disability community and the Canadian Human Rights Commission for that purpose.

Our concern arises from the fact that s. 172 of the Canada Transportation Act provides that once the CTA has enacted a regulation in an area, passengers with disabilities are barred from bringing an individual claim that a barrier is an “undue obstacle” in that area, if that would require the transportation provider to do anything more than the regulation requires. In effect, the CTA regulation sets a cap or ceiling on the scope of the duty to accommodate of transportation providers. The transportation provider need do no more, even if the regulation does not ensure effective accommodation, and even if further accommodation efforts are possible without undue hardship.

Section 172 provides, referring to the Canada Transportation Agency:

“in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.”

The AODA Alliance and other disability organizations have asked Parliament to repeal s. 172. That would leave the human rights duty to accommodate intact. Regulations enacted by the CTA could reinforce it, but never reduce it. The Federal Government has not done so. It has given no reason for its refusal to do so.

Instead of removing this unfair provision in the CTA legislation, Bill C-81 preserves it. The Federal Government refused our request to remove it from Bill C-81. We have asked the Senate to remove it. The Senate has not yet indicated whether it would do so.

When the CTA appeared before the Senate’s Standing Committee on Social Affairs to discuss Bill C-81 on April 10, 2019, it did not identify this problem or express any opinion on the AODA Alliance’s call for s. 172 to be repealed. To our knowledge, the Senators did not ask the CTA about this specific provision at those hearings.

When federal Disabilities Minister Carla Qualtrough appeared on April 3, 2019 before the Senate’s Standing Committee on Social Affairs to speak to Bill C-81, she stated:

“I have to emphasize that as a former human rights law practitioner, it is very important to me, and it has been, to preserve the duty to accommodate.”

Yet Bill C-81, whose creation she led, preserves and perpetuates s. 172, which is a threat to the duty to accommodate people with disabilities.

We here identify a troubling example in the draft regulations which on their face threaten to cut back on the duty to accommodate. As a painful irony, this threat arises from provisions which on their face give the impression that they seek to assist with the accommodation in transportation of passengers with disabilities.

We specifically focus on the draft regulations’ imposing a duty on passengers with disabilities to give advance notice to transportation providers of a request for certain prescribed accommodations. This problem arises from a combination of sections 29, 32, 34 and 35 of the draft regulations, which we set out here in material part.

Section 29 of the draft regulations provides:

“Advance notice at least 48 hours
29 (1) If a person with a disability makes a request for a service set out in this Part at least 48 hours before the scheduled time of departure, the carrier must provide the service. No advance notice required
(2) Despite subsection (1), if a person makes a request for a service referred to in any of paragraphs 32(a), (b), (g) and (i) to (w) or section 34 or 35 less than 48 hours before the scheduled time of departure, the carrier must provide the service. Advance notice 96 hours
(3) Despite subsection (1) and subject to subsection (2), a carrier may require that a request for a service set out in this Part be made 96 hours in advance of the person’s scheduled time of departure if the period of advance notice that is required by the carrier is reasonably necessary in the circumstances because of the type of service that is requested by the person. If no advance notice
(4) Despite subsections (1) and (3), if a request for a service that is subject to a time limit referred to in those subsections is not made within the time limit, the carrier must nonetheless make a reasonable effort to provide the service.”

Section 32 of the draft regulations, to which s. 29 refers, provides:

“32 A carrier must ensure that personnel, on the request of a person with a disability, provide the following services to the person without delay: (a) assisting the person with registering at the check-in counter;
(b) permitting the person, if they are unable to use an automated self-service kiosk or other automated check-in or ticketing process, to advance to the front of the line at a check-in counter or ticket counter;
(c) assisting the person in proceeding through any security screening process at the terminal, including by
(i) providing personnel to assist the person to proceed through the security screening process, or
(ii) collaborating with the relevant security authority or security personnel at the terminal to permit a person who is not travelling with the person with a disability to have access to the security screening checkpoint so that they may assist the person with a disability to proceed through the security screening process;
(d) assisting the person in proceeding to the boarding area after check-in;
(e) before boarding, transferring the person between the person’s own mobility aid and a mobility aid provided by the carrier;
(f) assisting the person in boarding and disembarking and, in the case of a person travelling on a ferry, assisting the person in moving to and from a vehicle deck to a passenger deck;
(g) assisting the person in storing and retrieving their carry-on baggage;
(h) before departure and on arrival at the destination, transferring the person between a mobility aid and the person’s passenger seat; (i) assisting the person in moving in and out of a mobility aid space;
(j) before departure or, if impossible because of time constraints, after departure, describing to a person who is blind or has a visual impairment the layout of the aircraft, train, ferry or bus, as the case may be, including the location of washrooms and exits, and the location and operation of any passenger-operated controls at the person’s passenger seat;
(k) assisting the person in accessing any entertainment content that is offered on board, such as by providing them with a personal electronic device and assisting them in using that device;
(l) before departure, providing the person with an individualized safety briefing and demonstration;
(m) on board an aircraft, train or ferry, providing the person with an on-board wheelchair;
(n) on board an aircraft, train or ferry, assisting the person in moving between their passenger seat and a washroom, including by assisting them in transferring between their passenger seat and an on-board wheelchair;
(o) on board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog;
(p) if a meal is offered on board, describing to the person all the food and beverages that are offered for consumption or providing a menu in large print or in Braille;
(q) if a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions;
(r) if the person is not able to access a food service car on a train, permitting the person and any support person to order a meal, and be served the meal, at their passenger seats; (s) assisting the person in proceeding through immigration and customs; (t) assisting the person in retrieving their checked baggage;
(u) assisting the person, after disembarkation, in proceeding to the general public area;
(v) assisting the person, after disembarkation, in proceeding to a location where the person may receive assistance to proceed to the curbside zone from personnel of the terminal operator; and
(w) assisting the person, if they are transferring to another segment of their trip within the same terminal, in proceeding to a location where the person may receive assistance from personnel of the receiving carrier.”

Sections 34 and 35 of the draft regulations provide:

“34 If a person with a disability who is in a wheelchair, a boarding chair or any other device in which the person is not independently mobile is waiting at a terminal for departure after check-in or in order to transfer to another segment of their trip, the carrier must ensure that personnel
(a) provide the person with a place to wait that is close to personnel who are available to provide assistance to the person; and
(b) periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part.

Request for assistance
35 Unless a person with a disability is able to request assistance from personnel by means of a call button, the carrier must ensure that personnel periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part.”

This draft regulation would legislate the creation of a new legalized barrier to the duty to accommodate, namely a requirement for passengers with disabilities to give advance notice to the transportation provider 48 hours before the travel, when seeking certain specified accommodations. That means that passengers with disabilities don’t have an assurance of a vital accommodation service if they have not given 48 hours advance notice to the transportation provider, where they are requesting any of the following accommodations:

Assisting the person in proceeding through any security screening process at the terminal (s. 32c).
Assisting the person in proceeding to the boarding area after check-in (s. 32(d)).
Before boarding, transferring the person between the person’s own mobility aid and a mobility aid provided by the carrier (s. 32(e)).
Assisting the person in boarding and disembarking and, in the case of a person travelling on a ferry, assisting the person in moving to and from a vehicle deck to a passenger deck (s. 32(f)).
Before departure and on arrival at the destination, transferring the person between a mobility aid and the person’s passenger seat (s. 32(h)). Assisting the person in moving in and out of a mobility aid space (s. 32 (i)).
Before departure or, if impossible because of time constraints, after departure, describing to a person who is blind or has a visual impairment the layout of the aircraft, train, ferry or bus, as the case may be, including the location of washrooms and exits, and the location and operation of any passenger-operated controls at the person’s passenger seat (s. 32(j)).
Assisting the person in accessing any entertainment content that is offered on board, such as by providing them with a personal electronic device and assisting them in using that device (s.32 (k)).
Before departure, providing the person with an individualized safety briefing and demonstration) s. 32(l)).
On board an aircraft, train or ferry, providing the person with an on-board wheelchair (s. 32(m)).
On board an aircraft, train or ferry, assisting the person in moving between their passenger seat and a washroom, including by assisting them in transferring between their passenger seat and an on-board wheelchair (s. 32(n)).
On board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog (s. 32(o)).
If a meal is offered on board, describing to the person all the food and beverages that are offered for consumption or providing a menu in large print or in Braille (s. 32(p)).
If a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions (s. 32(q)).
If the person is not able to access a food service car on a train, permitting the person and any support person to order a meal, and be served the meal, at their passenger seats (s. 3r)). Assisting the person in proceeding through immigration and customs (s. 32(s)). Assisting the person in retrieving their checked baggage (s. 32(t)).
Assisting the person, after disembarkation, in proceeding to the general public area (s. 32(u)).
Assisting the person, after disembarkation, in proceeding to a location where the person may receive assistance to proceed to the curbside zone from personnel of the terminal operator (s. 32(v)).
Assisting the person, if they are transferring to another segment of their trip within the same terminal, in proceeding to a location where the person may receive assistance from personnel of the receiving carrier (s. 32(w)).
Providing a person with a disability who is in a wheelchair, a boarding chair or any other device in which the person is not independently mobile, while waiting at a terminal for departure after check-in or in order to transfer to another segment of their trip, to provide the person with a place to wait that is close to personnel who are available to provide assistance ,and periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required as listed in that Part of the regulations. (s. 34).
Unless a person with a disability is able to request assistance from personnel by means of a call button, to ensure that personnel periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part. (s. 35).

Advance notice is simply not justified for many if not most of these accommodations assuming it can even be justified for any of them. These all involve a transportation provider deploying existing staff on hand. We cannot see how a transportation provider would change its plans or operations 48 hours before a trip in response to such advance notice. Even if advance notice were justified, which we dispute, a full two days is excessive.

Making this problematic situation even worse, s. 32(3) would allow a transportation provider to unilaterally require even more notice, namely 96 hours (4 days) for any of the foregoing, in circumstances that passengers with disabilities could not reliably know in advance. Section 32(3) provides:

” (3) Despite subsection (1) and subject to subsection (2), a carrier may require that a request for a service set out in this Part be made 96 hours in advance of the person’s scheduled time of departure if the period of advance notice that is required by the carrier is reasonably necessary in the circumstances because of the type of service that is requested by the person.”

When could an airline, for example, possibly need fully four days’ notice in order for a flight attendant, already present on the plane to do any of the following:
* Before departure, providing the person with an individualized safety briefing and demonstration )s. 32(l)).
* On board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog (s. 32(o)).
* If a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions (s. 32(q)).

Section 32(4) of the draft regulations attempts to reduce the harshness of this new barrier to effective accommodation of passengers with disabilities. It provides:

“(4) Despite subsections (1) and (3), if a request for a service that is subject to a time limit referred to in those subsections is not made within the time limit, the carrier must nonetheless make a reasonable effort to provide the service.”

By s. 32(4), a passenger’s failure to give the required notice is not automatically barred from any accommodation. However, the only effort that the transportation provider must make to provide a needed accommodation in circumstances of no advance notice is effort that is simply “reasonable.” The draft regulation provides no criteria for assessing the reasonableness of the transportation’s efforts.

Section 32(4)’s “reasonable efforts” clause is worded in terms that risks falling short of the human rights duty to accommodate. Under the human rights duty to accommodate, the transportation provider has the duty to make serious and substantial efforts, tailored to the individual’s specific needs, including investigating alternative solutions where needed, as well as the burden to show that it was impossible for the transportation provider to do more than it did to accommodate the passenger with a disability, without undue hardship. “Undue hardship” is a recognized and tough test to meet. It is not mere “reasonableness” of its effort.

These sections in the draft regulations read as if they were written for, if not by, the transportation sector. Such provisions are emblematic of why so many in the disability community oppose the CTA being assigned the proposed accessibility mandate under Bill C-81.

Many if not most or all of the accommodation services listed above that are subject to this new prior notice requirement are ones which passengers with disabilities have been able to request without prior notice up to now. As such, the draft regulations here threaten to serve as a real step backwards.

The regulations impose no duty on a transportation provider to effectively notify all passengers that it will require a 96 hour notice period for any or all of the listed accommodation services. Merely posting this on a website provides no assurance that passengers with disabilities will know to check, and will check at the right place. Must all passengers with disabilities start surfing the web or phoning their airline 96 hours in advance in case they might need one of these accommodations?

This notice requirement also presents a serious new barrier for passengers who are travelling at the last minute, e.g. for business, or to address an emergency or to attend a funeral. Passengers without disabilities are not similarly burdened. As such, this appears quite discriminatory.

The draft regulations do not require transportation providers to provide a reliable, quick, easily-accessed means for passengers with disabilities to give the required notice to the transportation provider. Members of the public are all too aware of the difficulties when trying, for example, to simply get a live person on the line when calling a major transportation provider. Even when a passenger tries to contact either of Toronto’s major passenger airports, Pearson International Airport or Billy Bishop Airport, to request curbside assistance in advance of arriving at the terminal, frustrating barriers have been encountered. Some have secured media attention. Had this been so important for the airlines, we anticipate that they would have already created a fast, effective and easy-to-use to give such advance notice.

6. Exceptions and Exemptions that Are Too Broad Fly in the Face of Supreme Court Human Rights Requirements

The draft regulations include exceptions and exemptions that are too broad. We have not had the time to isolate and analyze all of these. They all needed to be screen for human rights concerns before enactment of this regulation can be considered.

The CTA’s explanation of the draft regulations includes:

“The proposed ATPDR would set minimum accessibility standards that would apply to any new buildings or facilities purchased by Canadian transportation service providers after the one year following the coming into force of the proposed Regulations. In addition, any major modifications made to existing equipment or facilities would be required to comply with the proposed Regulations.”

This appears to permit a transportation to acquire a new building with accessibility barriers over a year after this regulation comes into force. The draft regulations need to be vetted to ensure that they do not allow a transportation provider or terminal to acquire a new building or part of a building during the year after the regulation comes into force, that does not meet the regulation’s accessibility requirements.

As another example, the draft regulations set requirements for accessibility features that must be included in new passenger airplanes. According to a complex series of provisions that are hard to decipher, some of these requirements do not apply to a “pre-existing” airplane. Section 62(4) defines a pre-existing airplane or like equipment as follows:

“(4) In subsections (1) to (3), a pre-existing aircraft, train, ferry or bus means an aircraft, train, ferry or bus that was
(a) purchased or leased by the carrier before the day on which this section comes into force; or
(b) purchased or leased by the carrier on or after the day on which this section comes into force, if the carrier has submitted the invitation for bids in respect of that aircraft, train, ferry or bus before that day.”

This provision does not come into force for one year after this regulation is enacted (See s. 162). As such, it appears that an airline could rush out now and buy new airplanes that do not meet the accessibility requirements for new airplanes, over the months before the regulation comes into effect. This flies in the face of the duty of each transportation provider not to create new disability barriers. It was a CTA case before the Supreme Court of Canada that established this principle in Council of Canadians with Disabilities v. ViaRail ## cite. [2007] 1 SCR 650, citing with approval Lepofsky, M. David. “Federal Court of Appeal DeRails Equality Rights for Persons With Disabilities Via Rail v. Canadian Transportation Agency and the Important Duty Not to Create New Barriers to Accessibility” (20052006), 18 N.J.C.L. 169.

All the timelines in these draft regulations need to be vetted to ensure that they do not violate the principle that the Supreme Court of Canada enunciated in the ViaRail case.

7. Curbside Assistance Provisions Fraught with Difficulties

We offer one other illustration of a concern with the draft regulations that show the risk of their being quite weak, namely the provision regarding curbside assistance at a transportation terminal. We do not here suggest that this provision violates existing human rights. Rather, we point to this because the CTA, when appearing before the Senate’s Standing Committee on Social Affairs, highlighted this part of these regulations. CTA chair Scott Streiner told the Senate’s Standing Committee on Social Affairs on April 10, 2019:

“The second example I would give relates to curbside assistance that is, curb to gate assistance in airports. For travellers using mobility devices, particularly wheelchairs but also those who require guidance for blind travellers, or others, we all know that it can be a challenge, even if you don’t have a disability, to find your way from curbside to gate. Certainly, we require assistance in some cases for persons with disabilities.
There have been instances that have come to our attention where there’s been confusion about who provides that assistance between the airport, the airline and folks that found themselves not receiving the kind of assistance they need in a timely way. Again, these new regulations make it clear who has to do what. That’s a gap we’re trying to address through regulations.”

It is commendable that the draft regulations aim to ensure that passengers with disabilities can get curbside assistance to get into an airport or other transportation terminal, so they can check in. However, the provisions have excessive loopholes and leave far too much to the discretion of transportation provider and terminal operators. Contrary to Mr. Streiner’s presentation to the Senate and his commendable aims here, they do not make it clear to passengers with disabilities who does what.

Section 137 provides that a terminal operator must provide to passengers with disabilities “without delay” accommodation services such as”

“(c) assisting the person to proceed between the curbside zone and the check-in area or, if there is no check-in area, between the curbside zone and a representative of a carrier.”

Section 137(2) qualifies that a terminal does not have to provide that service if the transportation provider is providing that service. Section 137(2) provides:

” (2) Despite subsection (1), a terminal operator is not required to provide a person with any assistance referred to in that subsection if a carrier is already providing that person with that assistance.”

Section 136 requires the terminal operator to publish information about the availability of this curbside assistance. Section 136 provides in part:

“136 A terminal operator must publish, including by publishing on its Internet site, information about the services or facilities available at the terminal for persons with disabilities, including information about
(a) the curbside zone, including where the curbside zone is located and how to request assistance to or from the curbside zone;”

Taken together, these provisions are too confusing and slippery. Here again, they appear to serve the interest of terminal operators and transportation providers, who are given excessive discretion. Passengers with disabilities are left with uncertainty and unpredictability.

First, the regulation sets no time target that the terminal or transportation provider must meet to provide this curbside assistance. “Without delay” is entirely unpredictable and hard to enforce. A passenger with a disability could be left isolated, with no nearby staff, waiting and waiting alone in front of an airport in the middle of a freezing February day, without knowing how long they must continue to wait. They won’t know how much earlier they must arrive at the airport to be sure they get assisted to arrive inside the terminal to check in, in time to ensure that they don’t miss their flight. This does not serve the fundamental goal of predictability that the CTA emphasized in its explanation of these regulations.

By not specifying a specific maximum time requirement, this leaves each transportation provider free to set its own time lines, hoping that passengers with disabilities won’t bother taking on the burdensome chore of filing and litigating a case before the CTA over this. transportation providers know that few passengers with disabilities will wish to take on the hardship of litigating against a well-funded transportation provider over the interpretation of the vague words “without delay”.

Second, the draft regulations create confusion facing passengers with disabilities over who is responsible to provide this curbside assistance. The provision imposes the duty on the terminal. However, it leaves it open to an airline to provide the service, in which case the terminal is excused. Yet the provision imposes no specific duties on the airline that does offer the service. Does the “without delay” clause apply to the airlines too? If the airline doesn’t provide the service, has the passenger a right to demand it from the terminal operator? How can the passenger give the 48 or 96 hour notice that the terminal operator might demand?

For a passenger with a disability who just wants to get into an airport’s front door and up to the counter, this is a legal/regulatory mess dressed up as a helpful accommodation. Add to this the ordeal, while standing outside on that freezing February day, fearful of missing one’s flight, of then having to try to get someone on the phone from the airline or airport to figure out who is supposed to help, or trying to surf the web to see if there is an up-to-date posting on the airline’s or airport’s website that might point to the right phone number. Navigating such websites for assistance and trying to reach a live person on the phone with correct information on a topic like this is already a vexing challenge.

Third, there appears to be no requirement that all passengers including passengers with disabilities be notified of this service when their ticket is purchased, as part of the ticket documentation. Similarly, there is no requirement that the transportation provider or terminal have, and make public, an easily-reached phone number to call when en route to the terminal, to give advance warning that they are about to arrive. Requiring notice 48 or 96 hours in advance does little to help the terminal or transportation provider. Being able to call to seek this accommodation when a few minutes away, and to reach a live person in direct contact with the help personnel, would go much further to make a service like this become reliable.

8. Conclusion

We hope that in our rush to provide useful feedback on this complicated and at times, opaque draft regulation, we have not inadvertently made any incorrect descriptions of its provisions. If we have, we ask the CTA to notify us, so that we can correct our submission.

This draft regulation shows why it is essential for Parliament to immediately repeal s. 172 of the Canada Transportation Act. People with disabilities should not have to fear that the enactment of a regulation like this, despite some helpful provisions, can end up reducing their rights. They face too many barriers now in Canada’s transportation system. They should not face further hurdles, created by a regulatory authority whose mandate is to tear down such barriers and to prevent the creation of new ones.